Ayers v. Claridy

George, J. (After stating the foregoing facts.) According to the plaintiff’s allegations, the defendant should have made at least 600 bushels of corn, 6000 bundles of fodder, and 150 bushels of peas,- — -of the total value of $1650. For one third of this sum he prayed judgment against the defendant. How much is claimed as rent, and how much as damages on account of the alleged breach of the contract, it is impossible to tell. - It is, however, averred that the defendant actually made 100 or 125 bushels of corn on the rented premises; and it is admitted that the plaintiff elected to sue out a distress warrant for the value of one third of the crop actually grown by the defendant, and that the defendant had hied a counter-affidavit and had given the bond as required by the statute. The filing of the counter-affidavit converted the distress warrant into mesne process, and the proceeding became a suit for rent. Hardy v. Poss, 120 Ga. 385 (47 S. E. 947). “Where a distress warrant has been taken out and levied, and a counter-affidavit made and returned into court for trial, the proceeding amounts to a suit for rent, and pending it an action of complaint can not be brought for the rent covered hy the warrant. To such an action the pendency of the former case is a good plea, unless such former action is so defective that no recovery can possibly be had on it.” Chisholm v. Lewis, 66 Ga. 729. See also Elam v. Hamilton, 69 Ga. 736. Unless the plaintiff should, therefore, by amendment separate the amount claimed as rent from the amount claimed as damages on account of the breach of the contract, the plea in abatement is good. For the damages claimed on account of the breach of contract the plaintiff has no lien. “Under a contract of rent whereby the tenant agreed to pay to the landlord specified fractional portions of the crops made upon the rented premises, the latter, although the former further agreed to cultivate the land 'in a good husbandlike manner,’ and failed to do so, was entitled to distrain for only the value of such fractional portions of the crops actually made, and not for such portions of crops which might have been made if the tenant had complied with his contract as to the manner of cultivation.” Reynolds v. Howard, 111 Ga. 888 (36 S. E. 967). The general rule is that a oreditor without a lien can not enjoin his debtor from disposing of his property, nor is he entitled to have a receiver appointed to take charge of the defendant’s property. Civil Code, § 5495; [501] Authur v. Bank of Ball Ground, 146 Ga. 719, 720 (92 S. E. 205). Equity recognizes certain exceptions to the general rule, but the facts in the instant case do not bring it within any of the exceptions. The case of Lewis v. Christian, 40 Ga. 187, is cited in support of the ruling made by the court below in the present case. That case is not exactly similar to the present case, and we are, of the opinion that the ruling there made should not be extended. The plaintiff in the present case is a creditor without a lien or title, and the case is within the general rule above stated. Judgment reversed. All the Justices concur, except Atkinson, J., absent.